Citation Nr: 0605391
Decision Date: 02/24/06 Archive Date: 03/01/06
DOCKET NO. 05-11 839 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUE
Entitlement to service connection for diabetes mellitus, Type
II.
REPRESENTATION
Appellant represented by: Blinded Veterans Association
ATTORNEY FOR THE BOARD
Patricia A. Talpins, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from an October 2004 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Wichita, Kansas in which the RO denied the benefit sought
on appeal. The veteran, who had active service from July
1969 to June 1972 without service in Vietnam, appealed that
decision to the BVA. Thereafter, the RO referred the case to
the Board for appellate review.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. Diabetes mellitus, type II, was not manifested during
service or for many years following service, and is not shown
to be causally or etiologically related to service.
CONCLUSION OF LAW
Diabetes mellitus was not incurred in or aggravated by
service, nor may it be presumed to have been so incurred. 38
U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West
2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304,
3.307, 3.309 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A. The Veterans Claims Assistance Act
Prior to proceeding with an examination of the merits of the
claim, the Board must first determine whether the veteran has
been apprised of the law and regulations applicable to this
matter, the evidence that would be necessary to substantiate
the claim, and whether the claim has been fully developed in
accordance with the Veterans Claims Assistance Act of 2000
(VCAA) and other applicable law. See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 &
Supp. 2005). The VCAA provides, among other things, that the
VA will make reasonable efforts to notify a claimant of the
relevant evidence necessary to substantiate a claim for
benefits under laws administered by the VA. The VCAA also
requires the VA to assist a claimant in obtaining that
evidence. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159
(2005).
First, the VA has a duty under the VCAA to notify a claimant
and any representative of the information and evidence needed
to substantiate a claim.
The veteran in this case was informed of the evidence needed
to substantiate his claim, the evidence considered, the
pertinent laws and regulations and the reasons his claim was
denied by way of a March 2004 letter from the RO, an October
2004 rating decision, and a March 2005 Statement of the Case.
The March 2004 letter, provided to the veteran prior to the
decision in this case, notified him of the substance of the
VCAA, including the type of evidence necessary to establish
entitlement to the benefit sought and whether or not the
veteran or the VA bore the burden of producing or obtaining
that evidence or information. Consistent with 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b), the RO essentially
satisfied the notice requirements in this letter by: (1)
informing the veteran about the information and evidence not
of record that was necessary to substantiate the claim; (2)
informing the veteran about the information and evidence the
VA would seek to provide; (3) informing the veteran about the
information and evidence the veteran was expected to provide;
and (4) requesting that the veteran provide any information
or evidence in his possession that pertained to the claim.
The March 2004 letter notified the veteran that additional
evidence was needed to support his claim and requested that
the veteran inform the RO of any other evidence or
information the veteran thought would support his claim. In
a statement submitted that same month, the veteran's
representative reported the veteran had no additional
information or evidence to add to his claim. He also waived
the one year waiting period for the submission of additional
evidence. The veteran was then told in his March 2005
Statement of the Case that he should provide the RO with any
evidence in his possession that pertained to his claim.
Thereafter, in August 2005, the veteran submitted additional
lay evidence to the Board and asserted a desire for the case
to be remanded if a favorable decision was not issued.
However, in December 2005, the veteran submitted additional
medical evidence, in the form of a nexus opinion, in support
of his claim. He waived his prior remand request and asked
for a final decision by the Board at that time. The
veteran's submission of additional lay and medical evidence,
as well as his awareness of the procedural requirements
involved, indicates to the Board that he understood his
evidentiary burden and responded thereto.
After receiving the March 2004 VCAA letter and the October
2004 rating decision, the veteran received the March 2005
Statement of the Case. Collectively, these documents issued
in connection with this appeal notified the veteran of the
evidence considered, the pertinent laws and regulations and
the reasons his claim was denied. Since each of the four
content requirements of a VCAA notice has been fully
satisfied, any error in not providing a single notice to the
veteran covering all content requirements is harmless error.
Under these circumstances, the Board finds that the
notification requirements of the VCAA have been satisfied.
Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v.
Principi, 16 Vet. App. 183 (2002); Bernard v. Brown, 4 Vet.
App. 384 (1993).
Second, the VA has a duty to assist a claimant in obtaining
evidence necessary to substantiate a claim. In this regard,
the veteran's service medical records, VA medical records and
private medical records have been associated with the claims
file. Additionally, the RO afforded the veteran a VA
examination in August 2004 that addressed the medical
question presented in this case. The veteran has not made
the RO or the Board aware of any additional evidence that
needs to be obtained in connection with his claim.
Accordingly, the Board finds that all relevant evidence
necessary for an equitable disposition of the veteran's
appeal has been obtained and the case is ready for appellate
review.
B. Law
Applicable law provides that service connection will be
granted if it is shown that a veteran has a disability
resulting from an injury or disease contracted in the line of
duty or for aggravation of a preexisting injury or disease.
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304
(2005). Service connection may also be granted for certain
chronic diseases, such as diabetes mellitus, when such
disease is manifested to a compensable degree within one year
of separation from service.
38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
In addition, service connection may be granted for any
disease diagnosed after discharge, when all of the evidence,
including that pertinent to service, establishes that a
disease was incurred in service. 38 C.F.R. § 3.303(d).
Generally, to prove service connection, the record must
contain: (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances, lay testimony,
of an in-service incurrence or aggravation of an injury or
disease and (3) medical evidence of a nexus between the
current disability and the in-service disease or injury.
Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown,
7 Vet. App. 498 (1995). When all the evidence is assembled,
the VA is responsible for determining whether the evidence
supports the claim or is in relative equipoise, with the
veteran prevailing in either event; or whether a
preponderance of the evidence is against a claim, in which
case the claim is denied. Gilbert v. Derwinski, 1 Vet. App.
49 (1990).
In addition to the forgoing, the Board observes that if a
veteran was exposed to an herbicide agent during active
military, naval, or air service, service connection for type
II diabetes mellitus may be applicable on a presumptive
basis. However, the veteran did not serve in the Republic of
Vietnam and does not contend otherwise. See DD 214 Report of
Transfer or Discharge form. As such, service connection on a
presumptive basis for diabetes mellitus is not warranted. See
38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).
C. Analysis
The veteran contends he is entitled to service connection for
diabetes mellitus, type II, on the basis that he underwent
laboratory studies in 1973 which indicated he had a blood
sugar level of 525. His representative argued in November
2003 that the veteran's 1973 blood test was a symptom that
the veteran was either diabetic in service or within one year
of separation from service. Having carefully considered the
veteran's claim in light of the record and the applicable
law, the Board concludes, as will be explained below, that
the preponderance of the evidence is against the claim and
the appeal will be denied.
In this matter, the veteran's service medical records do not
support his contention as they do not contain any complaints,
treatment or diagnoses of high blood sugar levels,
hyperglycemia or diabetes mellitus in service. The veteran's
April 1972 service separation examination reported a negative
urinalysis. The veteran reported at the time of his
discharge that he felt fine, and his endocrine system was
marked as "normal" under the clinical evaluation portion of
the examination.
In regards to the veteran's post-service medical records, the
Board observes that the claims file contains a June 1972
application for compensation for a disability not pertinent
to this appeal; a July 1972 general medical and orthopedic
examination with laboratory studies performed in connection
with the nonrelated claim; a 1973 private medical document
submitted by the veteran; the November 2003 claim for service
connection for diabetes mellitus; a June 2002 prescription
note from Marcel Binstock, M.D.; VA treatment records dated
from July 2002 to December 2004; two letters from L. Scott
Allison, D.O. dated in November 2003 and December 2005; and a
VA examination report dated in August 2004. The record on
appeal also contains a statement by the veteran's wife
submitted in June 2005.
Of these, the veteran's 1972 records do not support his claim
as they do not reflect complaints of or treatment for
diabetes mellitus, and actually report that the veteran's
blood sugar level was normal. In June 1972, the veteran
submitted a request for service connection for a condition
not pertinent to this appeal. The veteran did not reference
diabetes mellitus in his application for compensation, nor
did he report symptomatology associated with it. In
connection with this other claim, the veteran was afforded a
general medical and orthopedic examination in July 1972. A
glucose test taken at that time was negative.
The foundation of the veteran's argument is based upon a 1973
document that reflects an April 1973 visit and a November
1973 medical laboratory study. The document, titled "Out
Patient Record," is separated into an upper and lower
section. The upper section is dated in April 1973 and
contains two boxes. The first box requests patient
background information and the second box requests insurance
information. A line across the top of the first box contains
the words "laboratory," "x-ray," "physical therapy," and
inhalation therapy"; and a small box next to the word
"laboratory" is marked with an "x." The name on the
physician's line is reported as "Grigsby." Lastly, in the
upper left hand margin of the document above the word
"laboratory" is a handwritten notation reporting either
"Blood Sugar 525" or "Blood Sugar 5.25" or "Blood Sugar
5:25."
The lower portion of the 1973 medical document is dated in
November 1973. It reflects a laboratory worksheet with
various tests and a large space where findings could be
reported. Of the tests listed, only the "fast sugar" test
is completed. In the result column listed next to the test,
the number "104" is written. No other relevant findings
were reported within this section.
The veteran, the veteran's spouse and Dr. Allison opine that
the "Blood Sugar 525" notation in the upper left hand
margin of the 1973 document means that the veteran's April
1973 blood sugar was in the five hundreds; and that this
number indicates the veteran was diabetic at the time.
However, the Board is uncertain as to whether this notation
stands for the proposition asserted. It is unclear as to
what exactly the notation refers to; as it is undated and
subject to a variety of interpretations. The Board observes
that it could just as likely refer to the time or date of a
medical appointment as it does to a blood sugar reading. If
the notation were to reflect an April 1973 blood sugar
reading, it is unclear why the reading was reported in the
upper left hand margin of the document rather than the lower
section specifically designed for laboratory studies and
results. The data could have appropriately been logged
within that section, given that the veteran's next blood test
was not performed until November 1973. The Board also
questions the interpretation based upon the fact that the
veteran did not undergo another blood test until November
1973, seven months after allegedly being informed of his high
blood sugar level. Such a delay appears unreasonable in
light of Dr. Allison's statement that at no time is a blood
sugar of 525 normal. One could reasonably assume that the
veteran's medical provider would have referred him for
immediate follow-up care in light of such a reading.
Therefore, the Board finds the veteran's interpretation of
the notation to be questionable and not as probative as the
other laboratory test results of record. However, assuming
for the sake of argument that the notation at issue reflects
a blood sugar level of 525 in April 1973, the Board concludes
that the preponderance of evidence is against the veteran's
claim, for the reasons discussed below.
In addition to the 1973 medical document, the veteran relies
upon his spouse's June 2005 statement and two letters from
Dr. Allison to support his claim. In her statement, the
veteran's spouse reported that she worked as a secretary in
the hospital where her husband's April 1973 blood work was
performed. She stated that her husband underwent a physical
examination for a job interview in 1973; and that he was seen
by a Dr. Grigsby who performed blood work and found that the
veteran's blood sugar was in the five hundreds. She reported
that Dr. Grigsby referred the veteran for a GTT test; and
told him that he was borderline diabetic. The veteran's
spouse observed that the veteran was thirsty a lot and went
to the bathroom frequently during this period of time. She
opined that it was more likely than not that the veteran was
diabetic in service based upon the 1973 laboratory report.
While the veteran's wife is qualified to report about the
symptomatology she observed, i.e. that he was thirsty a lot
and went to the bathroom quite frequently, the Board observes
that she is not qualified to provide a medical diagnosis or
opinion that her husband was diabetic while in service. She
is not shown to have the requisite training or expertise to
offer an opinion that requires medical expertise. Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, even
assuming that the veteran had a blood sugar level in the five
hundreds in April 1973, the veteran's wife cannot diagnose
the veteran with diabetes based upon this information and in
this regard, her statement is not probative to the analysis
at issue. In regards to her recollection that the veteran
was told he was borderline diabetic, the Board observes that
such a statement is claimed to have been made based upon the
isolated 525 blood level reading. The 1973 record indicated
no actual finding of diabetes mellitus in the area provided
for laboratory results, which weighs against the probative
value of the spouse's assertion that the veteran was told
that he was borderline diabetic. The Board also questions
the probative value of the spouse's statement in light of the
fact that it directly contradicts the conclusion formed by
Dr. Allison, in that the veteran had to have been a diabetic
for some time prior to 1973 since he would have been ill and
not functional with a blood sugar level of 525 if he were not
diabetic. Based upon the foregoing, the Board accords the
spouse's statement less probative value than the other
contemporaneous medical evidence at that time.
In regards to Dr. Allison's opinion, he indicated in November
2003 that the 1973 medical record was an April 1973 glucose
tolerance test that was incomplete as far as the number of
tests performed. He reported that the veteran's initial
fasting blood sugar (FBS) was 104 after a 12 hours fast. He
stated that this, in itself, was not remarkable. However, he
reported that the other note on the form was a "random (?)
blood sugar during a physical that tested a 525." Based
upon his interpretation of the 525 notation, Dr. Allison
stated that at no time is a blood sugar of 525 normal; and
that if the veteran was functional and not ill with a blood
sugar level of 525, he had been diabetic for some time. He
opined on this basis that the veteran had been an undiagnosed
diabetic for at least two to three years prior to April 1973.
In a subsequent letter submitted in December 2005, Dr.
Allison reviewed the veteran's wife's statement in which she
attested to the time frame of the laboratory work performed
in 1973. He indicated that if her June 2005 statement was
considered to be true and accurate, a point which is not be
so clear, then it was obvious that the veteran had diabetes
in 1973. He additionally opined that the onset of the
veteran's diabetes mellitus would be at the time he separated
from service based upon the June 2005 statement and the 1973
laboratory report.
If, as stated above, the 1973 blood sugar level of 525 is
accepted, it appears, at best, to be no more than an isolated
reading as there is no evidence indicating that the veteran
was either ill or not functional at the time of the
examination and the lower portion of the 1973 report is
negative for diabetes mellitus. This evidence undermines the
probative value of the opinion provided by Dr. Allison, since
it would seem the veteran could not have been both borderline
diabetic and an undiagnosed diabetic for several years at the
same time. The Board finds Dr. Allison's opinion to be less
probative in that it relied heavily upon the questionable
April 1973 blood sugar finding of 525 and essentially ignored
the subsequent November 1973 normal blood sugar level. In
fact, Dr. Allison implied that the November 1973 blood sugar
level was observed prior to the blood sugar level of 525
("the initial FBS was 104 after a 12 hours fast"). In
addition, Dr. Allison accepted the spouse's statement about
the laboratory report and conditioned his opinion upon the
truthfulness and accuracy of her statement. As discussed
previously, the Board considers her statement to be
inconsistent with the contemporaneous medical evidence, and
as such affords less probative value to her statement.
Accordingly, Dr. Allison's opinion, to the extent that it
relies upon the spouse's statement, is also of less probative
value.
While the veteran's representative asserted in April 2005
that the November 1973 normal blood sugar test does not rebut
Dr. Allison's opinion, the Board disagrees in light of the
fact that the preponderance of the evidence shows that the
veteran consistently had normal blood sugar tests both before
and after April 1973. The April 1973 report is the only
medical evidence indicating that the veteran had an abnormal
blood sugar level at any time prior to 1997 or 1998. The
Board observes that the first of the veteran's VA medical
records to mention the veteran's diabetes mellitus was dated
in July 2002. An October 2002 VA record reported that the
veteran was initially diagnosed with diabetes mellitus in
either October 1998 or October 1999, over 25 years after he
separated from service. Notably, the veteran did not
indicate during either his July 2002 or October 2002 VA
medical visits that he had been previously diagnosed as a
borderline diabetic in 1973. The first reference to such a
diagnosis occurred in May 2004, after the veteran submitted
his claim for service connection. When one compares the
medical history provided by the veteran before and after he
submitted his claim, the Board finds the subsequent history
to be less credible as it is not supported by the
contemporaneous medical evidence. In addition to the
veteran's VA records, the claims file contains a June 2002
record from Marcel Binstock, M.D. which stated that the
veteran is legally blind due to longstanding diabetic
retinopathy. Notably, Dr. Binstock did not relate this
diagnosis to service or to the veteran's 1973 blood sugar
levels.
Another factor affecting the probative weight of Dr.
Allison's opinion is his reliance upon a history provided by
the veteran, including the veteran's report that he did not
undergo a discharge physical examination or lab work when he
left service ("according to the veteran, there had been no
discharge physical exam and lab work"). As set forth above,
a separation physical examination was performed that
indicated the veteran's urinalysis and serology were
negative. Dr. Allison also appears unaware of the negative
glucose test taken in July 1972, within one month of
separation from service. The cornerstone of Dr. Allison's
opinion is the single April 1973 laboratory report which, as
discussed above, is of questionable value since no indication
of diabetes mellitus was noted at that time or in the other
contemporaneous medical records.
There is additional evidence weighing against the veteran's
claim and Dr. Allison's opinion. This includes a VA
examiner's August 2004 opinion that the veteran did not as
least at likely as not have diabetes in service or within one
year of separation from service. The examiner reviewed the
veteran's claims file, including the veteran's service
medical records, post-service medical records, the 1973
medical document, and the November 2003 letter from Dr.
Allison. The examiner noted that the 1973 glucose tolerance
test performed subsequent to [the 525 test result] only
reported a fasting 12 hour blood sugar of 104 mg/dl. After
taking a medical history, performing a physical examination
upon the veteran, and completing diagnostic and clinical
tests, the examiner reported that hyperglycemia was not
evident during the veteran's time in service, including upon
his separation examination, and that the veteran's fasting
blood sugar was normal within one year of separation from
service. He opined that the veteran's diabetes mellitus was
not related to service and he supported his opinion with the
fact that the veteran remained asymptomatic and was not
diagnosed with diabetes mellitus until 1998 at the earliest.
The August 2004 VA examiner provided his opinion and
conclusions based upon a complete and thorough review of the
medical evidence of record, which included Dr. Allison's
statements, and the objective findings on examination. To
the contrary, Dr. Allison's premised his opinion upon the
isolated April 1973 blood sugar reading without consideration
of previous and subsequent normal blood tests, the veteran's
wife's assertions, and an inaccurate history provided by the
veteran. While the veteran's representative argued in April
2005 that the August 2004 VA examination report does not
rebut Dr. Allison's opinion, the Board has thoroughly
reviewed the medical evidence of record and for the reasons
set forth above finds Dr. Allison's opinion to be of less
probative weight when compared with the other medical
evidence and August 2004 opinion. As such, the Board accords
more weight to the opinion of the VA examiner who performed
the August 2004 VA examination, and concludes that the
complete evidence of record is against the veteran's claim.
The Board concludes that the preponderance of the evidence is
against the veteran's claim that diabetes mellitus had its
onset in service or within one year of separation from
service, or that it is otherwise causally or etiologically
related to service. The Board finds that with respect to the
evidence presented, greater weight is to be accorded to the
findings of the August 2004 VA examination, the VA medical
records and the service medical records. See Hayes v. Brown,
5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the
Board to assess the credibility and weight to be given the
evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93
(1992)). In reaching this decision, the Board is aware of
the veteran's sincere belief that his diabetes mellitus
either developed in service or within one year of separation
from service. Nonetheless, he, as a layman, does not have
the requisite training or expertise to offer an opinion that
requires medical expertise. Espiritu v. Derwinski, supra.
The Board has considered the doctrine of reasonable doubt.
However, as the preponderance of the evidence is against the
veteran's claim, the doctrine is not applicable. See Gilbert
v. Derwinski, 1 Vet. App. at 55.
ORDER
Service connection for diabetes mellitus is denied.
____________________________________________
STEVEN L. COHN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs